A California law
compelling table grape growers to pay a state agency for generic advertising
does not violate the state Constitution, the Fifth District Court of Appeal
ruled yesterday.

The activities
of the California Table Grape Commission, the panel reasoned, constitute
government speech under Johanns v. Livestock Marketing Association
(2005) 544 U.S. 550, rather than an abridgement of the growers’ free speech or
other rights. The court upheld Fresno Superior Court Judge Donald S. Black’s
grant of summary judgment to the commission.

The
plaintiffs—Delano Farms Company, Four Star Fruit, Inc., Gerawan Farming, Inc.,
Bidart Bros. and Blanc Vineyards, LLC—alleged that the impost violated not only
the “liberty of speech” guaranteed by the Constitution, but also its rights to
free association, due process, liberty and privacy. Delano has been in
litigation with the commission over the tax since 1996, and was among several
growers who lost a federal constitutional challenge in the Ninth U.S. Circuit
Court of Appeals in 2009.

Ketchum Act

Delano is one of
a number of growers and producers who have challenged agricultural assessment
programs on free speech grounds. The grape program is authorized in California
by the 1967 Ketchum Act.

The act recites
the importance of the industry to “the economy, welfare, standard of living and
health of a large number of citizens residing in this state.” It includes a
finding that a generic marketing and advertising program is needed because the
“inability of individual producers to maintain or expand present markets or to
develop new or larger markets for such grapes results in an unreasonable and
unnecessary economic waste of the agricultural wealth of this state.”

The plaintiffs
and other grape growers who oppose the program have claimed that the hundreds
of thousands of dollars they pay each year do not return adequate value. They
say the commission spends too much money on non-advertising costs, such as
employee travel and scholarships, and that the advertising program gives the
misimpression that all varieties of table grapes are of similar quality.

But Justice
Herbert Levy, writing for the Court of Appeal, said Johanns is controlling,
just as it was in Delano Farms Co. v. California Table Grape Comm’n (9th
Cir. 2009) 586 F.3d 1219.

Johanns upheld a
$1-a-head fee on cattle to provide funds for a marketing and research program
under the Beef Promotion and Research Act of 1985.

Court’s
Conclusion

The court
concluded, 6-3, that the fee was used to promote government speech and not to
compel ranchers to disseminate an unwanted message. The Ninth Circuit, which in
2003 had ruled the grape program unconstitutional on the basis of prior case
law, then considered the government-speech issue and said the program was
constitutional.

Levy said the
Ninth Circuit’s reasoning was persuasive as to the state constitutional issue
as well.

“The detailed
parameters and requirements imposed by the Legislature on the Commission and
its messaging, the Secretary [of the California Department of Food and
Agriculture]’s power to appoint and remove Commission members, and the
Secretary’s authority to review the Commission’s messages and to reverse
Commission actions, lead us to conclude, based on the statutory scheme, that
the Commission’s promotional activities are effectively controlled by the state
and therefore are government speech,” Levy wrote.

Liberty Not
Violated

The justice went
on to say that the plaintiffs’ were not deprived of liberty or due process,
under rational-basis review.

“An act
promoting table grapes, one of the major crops produced in California, for the
purpose of protecting and enhancing the reputation of California table grapes
is reasonably related to the goal of protecting the state’s general welfare,”
he wrote. “Appellants have not demonstrated otherwise.”